PENSIONS ‑- FIREMEN ‑- STATUTE OF LIMITATION ‑- REPAYMENT OF OVERCHARGES

PENSIONS ‑- FIREMEN ‑- STATUTE OF LIMITATION ‑- REPAYMENT OF OVERCHARGES

The three‑year statute of limitations is applicable to claims against municipal firemen's pension fund for a refund of overpayments to the fund by municipal firemen.

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                                                                   June 14, 1961

Honorable Max Wedekind
State Representative, 34th District
3729 40th Avenue S.W.
Seattle 16, Washington

                                                                                                                Cite as:  AGO 61-62 No. 38

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on a question which we paraphrase as follows:

            What, if any, statute of limitations applies with regard to claims against a municipal firemen's pension fund for a refund of overpayments to said fund by a municipal fireman?

            We answer your question as set forth in our analysis.

                                                                     ANALYSIS

            In your letter you did not specify the cause or the reason for the overpayments to the municipal firemen's pension fund.  As we understand it, you have assumed that certain municipal firemen have, over a period of years, been overcharged with regard to their contributions to the pension fund.

            Consequently, nothing said herein should be construed as passing on whether a refund is due in a particular case, or whether in fact an overpayment has been made in a particular case.  We will merely assume that we are speaking of a case where a municipal fireman has been compelled, for one reason or another, to contribute more to the firemen's pension fund than was required of him under the law in effect at the time the contributions were made.

            The legal theory under which a claim for a refund of such overpayments would lie, would, we believe, be essentially a theory of implied contract.  That is to say, he who is in receipt of money paid by another  [[Orig. Op. Page 2]] under a mistake of law will be deemed by the court to have promised to repay this money to the person by whom it was thus mistakenly paid.  Corwin Investment Co. v. White, 166 Wash. 195, 6 P. (2d) 607 (1932); Pacific Coal and Lumber Co. v. Pierce County, 133 Wash. 278, 233 Pac. 953 (1925);Soderberg v. King County, 15 Wash. 194, 45 Pac. 785 (1896), and cases cited therein.

            Typically, actions of this type, when brought against a governmental body or public officer in his official capacity, have been aimed at a recovery of taxes or fees paid under a mistake of law.  However, we believe the principle involved, namely, that the recipient of such payments will be deemed in justice to have promised to repay the unlawful charge or overcharge, is equally applicable where an unlawful overpayment is extracted from a contributing participant in a public employees' pension or retirement system.

            From this conclusion it quite clearly follows that the statute of limitations applicable in such a case is so much of RCW 4.16.080 as limits to three years after the cause of action shall have accrued,

            ". . .

            "(3) An action upon a contract or liability, express or implied, which is not in writing, and does not arise out of any written instrument;"

            Such in fact was the holding of our court in Corwin Investment Co. v. White, supra, andPacific Coal and Lumber Co. v. Pierce County, supra.    It is also to be noted that in a recent superior court case,Kelley v. Spokane, et al., Superior Court File No. 154946 for Spokane county, involving the precise matter of a refund of overpayments to the municipal firemen's pension fund, this same three‑year statute of limitations was held to be applicable.  Though no appeal was taken from the judgment and decree in this case, we believe, for the reasons previously stated, that the ruling of the trial court upon the statute of limitations issue was correct.  In thus concluding, however, we are not to be deemed to have passed upon the basic issue in theKelley case; namely, whether unlawful overpayments had in fact been extracted from the plaintiff fireman in that case.  The ruling of the trial court on that issue involved a determination of the constitutionality of a statute (subsection (b) of § 7, chapter 91, Laws of 1947) purporting to raise the required pension fund contributions of firemen employed prior to January 1, 1947, from four percent of the first $250.00 of  [[Orig. Op. Page 3]] their monthly salaries to five percent of their entire monthly salaries.  It is not the policy of this office to pass upon the constitutionality of existing legislation, but rather to presume such legislation to be constitutional until otherwise held by our supreme court.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP H. AUSTIN
Assistant Attorney General